Sri H Venkatesh Vs Sri Varadasa Naika

25/2015 ON THE FILE OF THE II ADDITIONAL DISTRICT JUDGE, MYSURU, DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DTD 14.11.2014 PASSED IN OS.NO.123/2009 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND CJM., MYSURU.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE RAJESH RAI K

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NC: 2025:KHC:43332 RSA No. 170 of 2019

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HC-KAR

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ORAL JUDGMENT

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This is defendants' second appeal.

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The plaintiff filed the suit for declaration and permanent injunction against the defendant in respect of suit schedule property.

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The case of the plaintiff is that, himself and his elder brother one Late Karihucchanayaka are the children of Late Thopanayaka @ Thopayya and they both got partitioned the immovable properties as per document dated 22.06.1958 and each got 1 acre 25 ½ guntas of land. Thereafter, the plaintiff had purchased 1 acre 20 guntas from the legal heirs of his elder brotherKarihucchanayaka vide registred Sale Deed dated 14.03.1984. However, remaining 5 ½ guntas was also given to the plaintiff for consideration orally by the legal heirs of Karihucchanayaka. As such, the plaintiff is in possession and enjoyment of the suit schedule property i.e. an extent of 3 acres 11 guntas in Sy.No.78/2 of

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NC: 2025:KHC:43332 RSA No. 170 of 2019

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HC-KAR

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Udboor Village, Jayapuram Hobli, Mysuru Taluk. Subsequently, the defendant, having without any right, title or interest and having colluded with the revenue officials, got changed the revenue entries in his name. Hence, the plaintiff preferred the suit for the aforesaid relief.

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However, defendant Nos.1 to 3 denied the plaint averments by filing written statement contending that Ex.P10-mutation extract and Exs.D3 & 4 - RTC extracts, reveals that defendant Nos.1 to 3 were the absolute owners of the suit schedule property and by virtue of the same, they executed a Development Agreement in favour of defendant No.4 in respect of the suit schedule property. As such, the plaintiff has no right, title or interest in the suit schedule property.

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The Trial Court, after framing relevant issues and after considering the evidence and documents placed on record by both the parties, has recorded a finding that defendant No.4 himself admitted in his cross examination

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6 - NC: 2025:KHC:43332 RSA No. 170 of 2019

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HC-KAR

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that the father of the plaintiff - one Thopanayaka was the original owner of the suit schedule property and defendant Nos.1 to 3 failed to produce any title deeds to establish their right except Ex.P10-mutation extract and Exs.D3 & 4 - RTC extracts. However, Ex.P10 -mutation extract was cancelled by the Assistant Commissioner as per Ex.P20. In such circumstance, the Title Deeds placed by the plaintiff i.e. Ex.P1-Sale Deed and Ex.P2-Partition Deed clearly established the right, title and interest of the plaintiff in the suit schedule property. Accordingly, the Trial Court decreed the suit in favour of the plaintiff.

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On appeal by the defendant, the First Appellate Court, on re-appreciation of evidence on record, concurred with the findings of the Trial Court that in view of clear admission of DW.1 in his evidence that the father of the plaintiff was the original owner of the suit schedule property, which corroborates to the testimony of PW.1 coupled with documents Exs.P1 and P2. Further, the right claimed by defendant Nos.1 to 3 in the suit schedule

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NC: 2025:KHC:43332 RSA No. 170 of 2019

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HC-KAR

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property by virtue of Ex.P10 - mutation entry was cancelled by the Assistant Commissioner as per Ex.P20. Further, document Ex.P2-Partition Deed of the year 1958 being executed in the family of Thopanayaka @ Varadachenna, who is none other the father of the plaintiff, the plaintiff proved that Ex.P2 had come from proper custody, which was a document of 50 years old. As such, in proof of its execution, the Trail Court was justified in invoking the provisions of Section 90 of the Indian Evidence Act, raising presumption. However, defendant Nos.1 to 3 failed to rebut the said presumption.

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The other contention raised by defendant Nos.1 to 3 before this Court that the GPA Holder of the plaintiff has no right to depose evidence on behalf of the plaintiff cannot be accepted in view of the ratio laid down by the Hon'ble Supreme Court in the case of MANISHA MAHENDRA GALA Vs. SHALINI BHAGWAN

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AVATRAMANI in Civil Appeal No.9642/2010 disposed of on 10.04.2024.

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NC: 2025:KHC:43332 RSA No. 170 of 2019

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HC-KAR

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In my view, both the Courts have correctly come to the conclusion declaring that the plaintiff is the absolute owner in possession of the suit schedule property and accordingly, granted the prayer of permanent injunction in favour of the plaintiff restraining the defendants from interfering with the peaceful possession of the plaintiff over the suit schedule property. As such, in my view, there is absolutely no question of law, muchless substantial question of law arises for consideration in this appeal. The appeal is accordingly dismissed.

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SD/(RAJESH RAI K) JUDGE

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PKS List No.: 1 Sl No.: 17

Sri H Venkatesh v. Sri Varadasa Naika

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Sri H Venkatesh v. Sri Varadasa Naika

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